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Thursday, July 26, 2007

Neo-Know-Nothings? Law of the Sea Supporter Casts Civility Adrift

A story (paid subscription required) in the National Law Journal this week featured husband David as the lone supporter of U.S. sovereignty against quotes from three supporters of ratification of a treaty many Reaganite conservatives believe would hurt our national defense.

The National Law Journal article is nothing if not objective, beginning with the title "Sea Treaty Cast Adrift by the U.S.; Plenty of Support, but No Approval."

By the very definition of "plenty," there isn't "plenty of support" for the Law of the Sea treaty, because there hasn't been enough to get it approved. "Plenty" implies a surfeit. But more to the point, if there have been polls of public attitudes of the Law of the Sea Treaty, and I know of none, they certainly weren't referenced in the article.

The text commences in an equally fair and balanced manner:

The Law of the Sea Treaty, which established a sweeping legal regime for activities on and under the world's oceans, has been a fixture of international law for nearly three decades. But why, despite broad political, military, industry and environmental support in the United States, has the Senate never ratified it?

Some international law experts say it's unlikely any other treaty has been so widely supported and yet failed to come to a vote in the Senate for so long a period of time.

Today, 153 nation states have acceded to the treaty, including Russia, China, every European Union nation and virtually all U.S. allies in the North Atlantic Treaty Organization and the Organization for Economic Co-operation and Development.

President Bush recently urged the Senate to dust it off and push it through by the end of this congressional session.

Is the small, but tenacious, opposition rooted in traditional conservative mistrust of international legal bodies, such as the International Court of Justice and the International Criminal Court?

"I think that can be part of it," said treaty opponent David Ridenour, vice president of the National Center for Public Policy Research. "Certainly there are provisions of the treaty that give people reasons to be distrustful."

But that distrust is based on misinterpretations of treaty specifics and poor lawyering, insisted longtime treaty advocate John Norton Moore of the University of Virginia School of Law, director of its Center for National Security and Oceans Law and Policy...

Mr. Moore (a Law of the Sea Treaty negotiator) goes on to refer to treaty opponents as a "a neo-know-nothing movement," evidently referring to the mid-19th century Know-Nothing Party.

(The National Law Journal may have missed the reference, as it did not capitalize the party's name -- possibly its writer and/or editors thought Moore was describing critics as a movement of newly-minted idiots.)

The Know-Nothings, for those of you who have limited your knowledge of history to what they teach in schools and universities, was an anti-immigrant and anti-Catholic political party during the pre-Civil War era.

The slur is reminiscent of comments from the pro-amnesty lobby, which called law-abiding citizens who want to build a wall to protect our border before discussing amnesty for illegal aliens xenophobic immigrant bashers, among other epithets. But heck, even Jimmy Carter's amnesty of Vietnam War draft-dodgers didn't take place until after the war was over.

Peace first; then forgive.

To be fair, Mr. Moore also called some treaty opponents "fine people." If I actually were married to an anti-immigrant Catholic basher, it would be a relief indeed to know he is a fine one. And at the risk of sounding like a newly-mined idiot myself, based on his picture on the University of Virginia website, Mr. Moore looks friendly -- though not chubby -- enough to play Santa Claus. Maybe he didn't really mean it.

I'm posting a bit more of the article below, but you'll have to visit (paid subscription required) the National Law Journal website to see the whole thing:

...The treaty gives states the option of choosing among ITLOS, the International Court of Justice or arbitral tribunals to settle their disputes. The United States is on record as rejecting the two courts and as choosing arbitration once it is a party to the treaty.

States are the main parties before the court or the arbitral tribunals, unless a state authorizes a private party, for example an oil company whose tanker has been seized by a foreign state, to proceed on its own behalf. Private parties have direct access to dispute resolution only in the deep sea-bed mining portion of the treaty. Mining companies sought their own right to sue and arbitrate, which was considered radical at the time, according to Oxman, but now is quite common, particularly under investment treaties.

Despite the United States' election of arbitration, Ridenour and other treaty opponents, such as Jeremy Rabkin of George Mason University School of Law, argue the United States could end up before the court when provisional measures -- similar to temporary injunctions -- are sought by a complaining state. The treaty provides that the court would automatically adjudicate such disputes when states cannot reach agreement on the method of adjudication or arbitration "within two weeks from the date of the request for provisional measures."

"You can imagine many circumstances in which the U.S. would disagree with Syria or Iran and where neither side agrees to arbitrators," said Ridenour. "The tribunal is not packed with a lot of U.S. supporters. One of the problems with these international tribunals is often you have judges from countries that do not have a long tradition of representative democracy."

But that is the "extreme setting" that treaty opponents magnify into a major, but baseless, problem, Moore said.

"All of the general dispute mechanisms are set up specifically for arbitration, like the normal commercial arbitration favored by American industry around the world," he said. At the end of the day, if parties can't agree on the arbitration process, he and others said, it is not unusual to have an appointing authority step in. And, if the United States were a treaty member, said Moore, it could have a judge on ITLOS and be an influential voice in the development of ocean laws.

Opponents also say treaty provisions on protecting the marine environment could become a "backdoor for environmental lawsuits" brought in U.S. courts on issues such as global warming. But supporters counter that U.S. courts are familiar with interpreting treaty obligations and the government wants this treaty because it offers stable rules of law and avenues for stopping environmental damage...

David's concerns about the Treaty, though it doesn't cover all of them, can be found here._____